When going through divorce, the first concern that comes to a lot of parents minds is custody of their children. As a couple you must decide how you will share custody, visitation, and decision making. If you can’t agree a judge will decide and will carefully look at the child’s best interests.
It is important to understand the rights of different parties in a custody case in Georgia. If the parents were married when the child was born, both parents have equal rights to custody of a child born during a marriage. Parents must solve custody arrangements prior to trial or they will have to go to court. Parents who are unmarried, the mother of the child born out of wedlock has all rights to custody of the child. Signing a birth certificate doesn’t give the biological dad the right to take the child. He must file a court case or file legitimation. Grandparents can also ask the court for visitation rights, however, they must prove “special circumstances”.
Now that you know what parties can have custody, it is important to understand the different types of custody. Physical custody is when the child lives with that parent. Physical custody can be joint, primary, secondary, or sole custody. When parents share “joint” custody they have roughly equal time with the child. Legal custody involves when the parent makes major medical, legal, educational, and religious decisions on the child’s behalf. Parents can also have legal “joint” custody to make major decisions togethers. The majority of the time the judge will award “joint” legal custody.
A term you will hear often during a child custody case is the “best interest” of the child. A judge will make the child’s best interest the focus of any custody decision. They will consider the following factors:
- each parent’s home environment and ability to care for and nurture the child
- each parent’s physical and mental health
- each parent’s emotional ties to the child
- each parent’s ability to provide the child with clothing, food, and medical care
- the relationship between the child and any siblings, half-siblings, or stepsiblings who are in either parent’s home
- each parent’s familiarity with the child’s health, educational, and social needs
- each parent’s involvement in the child’s schooling and extra-curricular activities
- each parent’s willingness to foster a relationship between the child and the non-custodial parent
- the relative stability of each parent
- any history of substance abuse by either parent
- any history of physical abuse, sexual abuse, or neglect of children by either parent, and
- any criminal histories of either parent.
In addition to looking at these factors, the judge will look at evidence that is brought to their attention in court. They will also take the child’s preference into consideration. Georgia custody laws allow a child who is 11 or older to state a preference as to which parent the child wishes to live with and at 14 a child can select which parent to live with. These elections aren’t absolute and the parent not being selected by the child still has the right to present evidence that the child’s election isn’t in his/her interest. It will only be in extreme circumstances that a judge will not go with the child’s election if over 14. Subsequently, the judge will look at each parents work schedule, who has available time for children, stability, and the ability to provide for the child’s needs.
Georgia law requires divorcing parents to submit a parenting plan to the court where custody is an issue. The parenting plan will outline the child’s needs and how the child’s time should be divided between the parents. The plan allocates decision-making authority and explains the parameters of each parent’s access to the child including legal and physical custody. The parenting plan should include normal visitation periods, holiday schedule, access to records regarding health, school, extracurricular activities, religious training, and making major decisions about the child.
All in all, obtaining child custody can be difficult. You want an attorney who you trust and are confident in to represent you and your children. If you are struggling with a child custody case and need an experienced lawyer, contact the lawyers at Brown Dutton & Crider at 770-422-4241.